Lawrence J. Waller v. Burlington Northern Railroad Company

977 F.2d 594 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Lawrence J. WALLER, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee. No. 91-35613. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 7, 1992. Decided Oct. 22, 1992. 1 Before GOODWIN and SCHROEDER, Circuit Judges, and KEEP, District Judge. * 2 MEMORANDUM ** 3 Plaintiff-appellant Lawrence Waller appeals the district court's grant of judgment notwithstanding the verdict in favor of Burlington Northern Railroad Company on this action under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 . 4 Waller's lawsuit charged that the Railroad did not provide a safe work place or safe tools and equipment. The crux of his argument is that replacing rail ties ("nipping") with a jack is safer than doing so with a bar. Thus, according to plaintiff's theory, it was negligent for Burlington to allow nipping to occur by utilizing a bar instead of a jack. 5 The…